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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Oct. 3, 1911)
r&GB TWO the capital journal l. HOFER, Editor rwi Prof rlator. R. M. HOrER, Manager Mn lint ll'.u aper Dentnd to Anwrfcu Principle and Ih Pnv-Hu and Dn.'luaKnl of All Ornroa PubliuMt Erery Evening Exempt Bandar. SUBSCRIPTION RATES! Onrarlably in Adiraoec) Mr. 'jy Carrier, per year - $4.00 Per thftr.br M.T, per rear 4-W Per moot ftheUr. br Maa V year LOO 81 i rUIX LEASED WlBI TfXECRAPH SALEM'S PROGRESSIVE SCHOOL POLICY. The new progress of Btudy adopted for the Salem public schools la distinctively progressive. There i3 more space given to industrial work and art than to the old-fashioned classics. 1 Boys are to learn the rudiments of woodwork, girls are to learn the foundation of cooking and needlework. Drawing has been extended to all grades, including the four years in the high school and the teachers' class. The high schools of Oregon, under the new course of study adopted by the state boards, are to do normal school work. City Superintendent Powers ean sen the Salem course of study anywhere in the civilized world and show Salem is lead er. Salem public schools are one of the best advertisements the city has and will compare with any in the nation. o THE COMMISSION CHARTER ELECTION. So far there has been no interest aroused in the election for the adoption of the commission charter. The requirement that all intending voters register again for this special election is a nuisance. If the citizen is registered once in two years that ought to en title him to vote at all elections. If the charter is adopted it will abolish the present mayor and the present council at once. 1 i !' If the charter is adopted three commissioners will have to be chosen by the "people in December. By Indirection this election will be a test of the popularity of the Lachmund administration. p-Tryfvt' If the commission charter is adopted it will end his public ca reer in the middle of his first term. ; ; , . o . OH, HOW DEAD WE ARE. The Capital Journal of Salem for September 9 contains a lengthy editorial that sheds new light on the matter of the Ore gon City locks. The present gleam of hope is faint, for the right of way on the east side, it is said, would cost $2,000,000 before removing a spadeful of earth, an almost prohibitive expense. Thus the schemes of the schemers succeed, while the people plod on under their burdens. Yamhill County Record. The Yamhill Record, above quoted, has a faint glimpse of the iniquity of the whole job. First the people held conventions and made public sentiment in favor of free locks and canal. Then the legislature passed bills several times making the necessary appropriations for thefree locks. On the urgent recommendation of Cognressman Ilawley the state and nation were to bear equal shares of expense. Then the senators put the appropriation through congress af ter Mr. Hawley let the bill go through without it. ' The next thing the United States engineers were engineered to have the canals located on the east sid of the river. It took a hard, fight in the last open river convention, held at Oregon City, by the Commercial Club there, to keep the gang from endorsing the east side of the river for the locks and canal. All they were fighting for was a plan to kill the whole enter prise by tying it up with litigation. The Albany Open River Convention appointed a committee to investigate the locks at OregonCity to determine which would be the better plan, for the government to purchase the old locks, or build new ones on the east side. This plan originated with some corporation politicians in Ore gon City, who have always opposed any proposition tending to an open free river. The Clackamas county delegation, led by Senator Hedges, in the senate, and J. U. Campbell, in the house, both in the session of 1907 and 1909, bitterly opposed the $300,000 appropriation for the purchasing of the old or the building of the new locks. As soon as congress had appropri ated the $300,000 to purchase or build said locks the old gang began to get quite busy. , ' " ! " The Capital Journal is very much afraid that the public agita tion by certain Oregon City people will lead to long and contin ued litigation and keep the river closed for a long time. When the bill for free locks was pending, both in 1907 and 1909, it did not have a single friend in the Oregon City delegation who would stand up and fight for it. The govrenment could very easily take over the old locks and canal, enlarge it and furnish the people free passage there. That would not involve the government in litigation for the right of way, as the east side enterprise will. But there is method in the east side push delay until the fed eral appropriation lapses, and then the work will have to be done all over again. But what do the thrifty politicians care for the whole matter, but to howl about it just beforethe primaries? In the mean time the producer pays the additional fifty cents a ton on all the freight that comes and goes out of Western Oregon. r rf .v ' . I . 'V fa 1 aiarlilua rnrurd lIAKAt) In US werki, I9A4 1 mat'1'.llM rnrunl l7t! la 1 wrrka, llHtt I aiarlillM nirnnl I HMS In wwka, 1V04 1 niarMua frn.l 1111.017 la t werka, 101 1 mnrttliM tarn-cl slt.Mt la 11 wrrkt, 11H 1 martilna rariml k IS wrke, 1 HUK-htna tarard I HUH la t wwkt, 110 Aheve fivarea will he veri6ed to proapectiva cwetomera. Write lor calalutaa aad prkea la C. W. PARKER Laaraawarth, Kat iMw, Cr" " manta. . EPOBV Kicked by a Mud Horse. Samuel nirch. of Iieetown, Wis., hud a moat narrow escape from los ing his log, as no doctor could heal the frightful sore that developed, but at last Bucklen'a Arnica Salve cured It completely. Its the greatest heal er of ulcers, burns, bolls, eciema, scalds, cuts, corns, cold-sores, bruises and plies on earth. Try It; 25 cents at J. C. Perry's. o- Journal "Want Ada" Bring Results. Children Cry FOR FLETCHER'S CASTOR! A CASE OF FORD TURNS ON NICE IS "AGAINST OREGON SUPREME Fill Text PibUshed bj Coirty of Supreme Ford t. O. E. Br. Co, Marlon County Frank Ford, respondent, v. Oregon Electric Railway Company, a corpor ation, appellant Appeal from the circuit court for Marion county. The Hon. Wm. Galloway, Judge.1 Argued and submitted July 25, 1911- Kaiser & Pogue, attorneys for respondent Harrison Allen and John H. McNary, (Carey & Kerr on the brief), attor neys for appellant- Bean, J. Re versed. Decided September 26, 1911. This Is a suit In equity. The de fendant, an electric railway corpora tion, appeals from a decree requiring It to stop Its local trains for the ac commodation of passenger at a road crossing near the house on the land of plaintiff, in performance of a con tract, executed August 25, 1906, by Tllmon Ford, accepted by defendant, and duly recorded, the material parts of which, omitting description of the land, Is as follows: "Know all men by these presents, That Tilmon Ford, unmarried, of the county of Marlon In the state of Ore gon, in consideration of the sum of six hundred dollars and other good and valuable considerations herein after expressed, to him paid by the Oregon Electric Railway Company the receipt whereof is hereby acknowledged as to said money, and the other considerations hereinafter expressed; has granted, bargained, Bold and conveyed," etc. "a right-of-way for Its railroad. " (Several covenants are then In serted In said deed as to fencing the right of way and building cattle guards and road crossings, as to said grantee its successors and as signs, and then the following:) "Said grantee, its successors and assigns, in operating said railway, shall stop Its local trains for the pur pose of taking on or putting off pas sengers at the road crossing easterly from where the house now stands on said premises, together with all and singular the tenements, heredfta ments, or appurtenances thereunto belonging, or in any wise appertain ing, subject to the terms and condi tions of said conveyance." It appears that after the execution of the right-of-way deed, the defen dant, the Oregon Electric Railway Company, constructed Its railroad from Portland to Salem, over which it has been operating its trains since January 1, 1908. The farm of plain tiff, Frank Ford contains 220 acres, upon which thero is situated the farm house mentioned and other buildings, eight-tenths of a mile from Chemawa station on the south, and one and four-tenths miles from Quinaby station on the north. Tha crossing In question is situated near tho center of the 220 acre tract, and It Is asserted by plaintiff that about 40 or 50 people would be better ac commodated with a station at that location. It appears that the wagon road crossed by defendant's electric lino is a private roadway; that the plaintiff desires to cut up and sell his land In five-acre tracts, concern ing which facts, In answer to the question: "In order to allow the pub lic to use your crossing, you would have to give your permission to go across your land and lay out a road. If the train would stop, you would either have to let the people come across your place or lay out a road?" the plaintiff replied "Yes sir." Plain tiff demanded of defendant that Its trains be stopped according to its contract, and contends that he is en titled to have the contract specifical ly enforced as his only adequate remedy. On behalf of defendant it la as serted that there are about 23 people residing within one-half mile of the proposed station; that from four to six local trains stop at all of the sta tions on the road, making 30 stops, the schedule time for the run be tween Portland and Salem being two hours. Two other through or special trains make the run In one hour and 40 minutes, covering the distance be tween Chemawa and Quinaby sta tions In four minutes; that the pas senger business handled in and out of Chemawa and Quinaby between June Sth and November 30th, 190S, was. for the former station, 1912, an average of about TO passengers per day, and for the latter 689, a daily average of four passengers. Tho to tal number of passengers for this period passing Chemawa and Quin aby both north and south, exclusive of those moving In and out of such stations, was 66.S00, making the dal ly average of passenger passing these stations about 3S0; that the es tablishment and maintenance of an- AGAINST 0. E. POINT OF LAW PUBLIC POLICY" COURT DECISIONS F. A. Tomer, Reporter of the Coirt ' other station In this vicinity would consume additional time, and delay the freight and passenger traffic on the line; that the income to be de rived from such station would not equal the actual expense of stopping and starting the trains, and that such a requirement would work a hard ship and Injustice to defendant. That the consideration of $600 paid for the land for the right of way was the full value thereof. It Is further con tended on the part of defendant that the "Necessities and convenience" of plaintiff, and all the Inhabitants in the vicinity of his land, have, since the operation of the railroads, ade quately been served by the stations of Chemawa and Quinaby; that at no time has there been enough passen ger or freight business to warrant the establishment of any more sta tions on this part of the line. It appears that Tllmon Ford was for many years and up to the time of his death, the owner In fee of the lands described in the deed, through which the right of way extends. He died March 1, 1908, and since his death by his devise the plaintiff, Frank Ford, has been the owner and in possession of the lands; that such lands are in a sparsely settled com munity; that the private roadway on the premises leads to a county road, which in turn leads to Chemawa and Quinaby stations, and that except by this private road, the crossing re ferred to is inaccessible. Bean, J. We deem It better to con sider the facts alleged in the com plaint, combined with the evidence In the case. It is argued upon the part of defendant that, as. the land was devised to plaintiff by Tllmon Ford, the covenantee, the covenant Is merely personal to Tllmon Ford; that the covenant extends to a thing not in esse, and does not run with the land, and for this reason the plaintiff cannot maintain this suit, citing authorities based upon Spen cer's Case, 5 Coke, 16 a, 1 Smith Lead. Cas., 174, (Note 11 Cyc, 1080), from which we quote as follows: "Spencer demised a house and lot to S. for years. S. covenanted for him self, his executors and administra tors, that he, his executors, adminis trators, or assigns, would build a brick wall on part of the land dem ised. S. assigned the term to J. and J. to Clark. Spencer sued Clark for a breach of the covenant to build the wall. The court by the first resolve held that a covenant only bound the assignee when It was concerning a thing in esse, parcel of the demise, not when it related to a wall to be built. By the second resolve, they held that if the covenant had bound the 'assigns" by express words, It would have bound the assignee, al though It was for a thing to be new ly made, as it was to be upon the thing demised; but that if the cove nant was for a thing to be done col lateral to the land, and did not touch or concern the thing demised, in any sort, as If It were to build a house upon other lands of the lessor, the assignee should not be charged, al though the covenant was for the cov enantor and 'his assigns.' The two principles thus settled have always been acknowledged as law: that the assignee when not named is not bound by a covennnt, except it re lates to a thing In esse at the time; and that when named, he Is not bound by a covenant collateral to the land but only for things to be done on or concerning the land." In Alkin v. Albany V. & C. R. R. Co.. 26 Rarb. (X. Y.). 2S9, 293, it is said: "A covenant which Is beneficial to, or binding on, the owner, as own er, and on or to no other person, runs with the land. (Citing 5 Barn. & Adol. 11; 2 Kern, 302 ) Yet it is also held that where the thing covenanted for, though not in esse touches or con cerns the thing demised, the cove nant does run with the land." (Cit ing 3 Denlo, 2S5.) "Covenants are to be regarded as affecting the land, though not direct ly to be performed upon It, provided they tend to Increase or diminish Its value in the hands of -a. holder." 11 Cyc. 10S1, citing Van Rensselaer v. Smith, 27 Barb., 104. "In order that a covenant may run with the land, that Is, that its bene fit or obligation may pass with the ownership, it must respect the thing granted or demised, and the act cov enanted to be done or omitted must concern the land or estate conveyed. Whether a covenant will or will not run with the land does not, however, o much depend on whether It Is to be performed on the land Itself, as on whether it tends directly or nec essarily to enhance its value or ren der It more beneficial and conven ient to those by whom it is owned or occupied, for If this be the case, every successive assignee of the land will be entitled to enforce the covenant "A covenant which may run with the land can do so only when there is a subsisting privity of estate be tween the covenantor and the cove nantee, that is, when the land itself, or some estate or interest therein, even though less than the entire title, to which the covenant may at tach as Its vehicle of conveyance, is transferred; If there is no privity of estate between the contracting par ties, the assignee will not be bound by, nor have the benefit of, any cove nants between the contracting par ties, although they may relate to the land he takes by assignment or pur chase frrom one of the parties to the contract. In such a case the cove nants are personal and collateral to the land.. On the other hand if there Is a privity of estate, a covenant which may run with the land will pass as an Incident to a subsequent conveyance. But if any estate passes, so as, to create privity, it is sufficient to carry the covenants, and the decided weight of authority Is to the effect that covenants run with incorporeal as well as corporeal her editaments." 11 Cyc, 1080, 1083. See also Gilmer v. Mobile & M. Ry, Co., 79 Ala., 569, 572; Taylor v. Florida E. C. Ry. Co., 54 Fla., 635. It Is said In Duffy v. New York & H. R. R. Co., 2 Hilt, 496, quoted from by Mr. Justice Moore in Brown v. Southern Pacific Co., 36 Or., 128, "But this nice distinction, originat ing at a time when It was necessary to use the word 'heirs', or other words of Inheritance, in a convey ance, In order to grant or convey an estate in fee, cannot be now said to exist, as in Norman v. Wells, 17 Wend, 136, it was determined that those covenants run with the land, which are made touching or concern ing it, and affect its value, and are not confined to those which relate to some physical act or omission upon it." As said by Mr. Justice Moore in that case, the word "heirs" is not now necessary to create or convey an estate in fee simple. All of the grantor's estate passes by his deed unless the intent to convey a less es tate appears by express terms, or is necessarily implied from the lan guage of the deed. L. O. L Sec 7103. See also Ruhnke v. Aubert, 113 Pac, 38, In which Mr. Justice Mc Bride, In construing the reservation in the deed of right of way for an irrigating ditch, says: "In determin ing whether a right granted is ap purtenant or in gross, courts must consider the terms of the grant, the nature of the right, and the sur rounding circumstances, giving ef fect, as far as possible, to the legal ly ascertained intention of the par ties, but favoring always the con struction of the grant as of an ease ment, appurtenant rather than of a right in gross. (Citing 10 A. & E. E., 405; Wash, on Ease., 4 ed., 45; Stovall v. Coggins Granite Co., 116 Ga., 376, 42 S. E., 723.) And the rule that the rights of parties to a deed must be ascertained from Its words is in cases of this kind subject to the modification that surrounding circumstances may be taken into consideration In order to ascertain the intention of the parties." (Citing Jones on Ease., Sec. 38; Jones on Real Prop., Sec. 344.)" The covenant In question Is In the nature of a reservation, providing for a means of travel to and fron the land mentioned and over the right of way granted to the railroad company. Tested by the rules laid down In the foregoing authorities, and many others to the same effect which might be cited. It is clear that if by the covenant the right for a footpath or bridlepath had been re served for the use of the owner or people occupying this farm along the right of way mentioned, there would be no question but that such a .cove nant would run with the land. The covennnt Is for the benefit of the other person. It has been held that the covenant to furnish gas for light ing and fuel to be used in buildings upon certain lands, would run with the land. Ind. Nat. Gas. Co. v. Hin ton 1.19 Ind., 398. See also a cove nant to Turnlsh water to be used upon land. Stanislous W. Co. v. Bachman, 93 Pac, (Cal.) 858; Ruhnke v. Aubert, supra; Tone v. Tillamook City, in Pac. (Or.), 93s! We see no reason why a covenant to furnish electricity for lighting or telephone service or car service for the benefit and convenience of the (Continued on Page 6.) $2,100 9-room house and three lots, 60 xl20; house In good condition. Barn 1Sx26. All sewer and street assessments are paid. This price will hold for only a short time. E. HOFER & SONS SIS 8. Comm. St Phone 82. 21 Drop of Blood Or a little water from the human tyatera when thorouiihly tested by the ch,et eherm.t at : Dr. Pierce'a Invalida' Hotel, Buffalo, N. Y., tells the itorr ol impoverished blood-nervoui exhaustion or torn kidney trouble. Such examination, .re made without cost and is only a small part of the work ol the staff ol physician, and surgeon, under 7hc direction ot Dr. R. V. Pierce mn the best medical advice possible without cost to those who wish to write and make lull statement of symptoms. An imitation ol nature, method of re.torin w.ste ol tissue and impoverishment of the blood and nervous force i. used when you take an alterative and glycerio extract ol root., without the use of alcohol, such as Dr. Pierce's Golden Medical Discovery Which make, the atomach itrong", promote, the flow oi digestive juice,, . store, the lo.t appetite, makes assimilation perfect, invigorate, the liver and purine, and enriche. the blood. It i. the great blood-maker, flesh-builder and restorative nerve tonie. It make, men strong in body, active and cool in judgment. Get what you ask fori E. HOFER & SONS Investments, Loans, Real Estate INSURANCE Wc write fire. Life, Accident, Liability, Automobile, Bonds and All Branches of Insurance. 213 S. Commercial St Phone 82 great chinese doctor l. m. htm. Has medicine wnio win cure any known disease. He makes a special ty of and guarantees to cure catarrh, asthma, lung, throat, rheumatism', debility, stomach, liver, kidney troubles, also any blackened or swollen soreness, broken limbs; smallpox epidemic; all kinds ot bolls, lost manhood, female weak ness, hernia troubles and paralysis Consultation free. Care of Tick Se Tong Co., Chinese drugs and herbs Office hours from 10 to J 2 a. m. and I to 7 p. m. Office open Sundays 153 High street, upstairs. Salem. WEST SALEM TRANSFER Passengers Baggage Connecting with all trains at West Salem for Dallas, Falls City and Salem. Leaves Journal office for West Salem at 8:40 a. m., 12 m., 1:10 p. m and 4 p. m. ev ery" day except Sunday. Also for Independence, Monmouth and McMlnnville. Leaves Sunday at 8:00 a. m., 1.00 p. m. and 5:15 p. m. Calls 8t hotels on request. Telephone or leave orders at Capital Journal office any day but Sunday. Phone 82. 0 ORDERS TAKEN FOR CALLS MORE THAX THREE BLOCKS FROM CORNER OF STATE AND COMMERCIAL STREETS UNLESS AR RANGED FOR IN ADYANCE. J. B. Underwood, Mgr. Portland's Popular Fire-Proof Hotel THE OREGON The House of Comfort Combined Wilh Elegance Our Rathskeller Grill finest dining service in city, with Hawaiian orchestra from 6 to 12 p. m, Most perfectly furnished, moderate priced, modern hostelry in the metropolis of tne Northwest WRIGHT & DICKINSON HOTEL CO. Owners and Managers Also Operating Seattle Hotel, Seattle. WOOD spW Until OCTOBER 15th, 1911 We will makea REDUCTION on 10 Load orders. 10 Loads, 16inch Wood $20.00 The Chas. K. Spaulding Logging Company Office front and Ferry Phone 1 830 SALEM BANK & TRUST CO. GENERAL BANKING AND TRUST BUSINESS With our assurance that we are able and willing to take care of it, we solicit your Banking Business. Open an account with us, and we will extend you every favor con. sistent with good banking prin ciples. WE TAT FOUR PER CENT 0 SAVINGS , Liberty Street, Just off State J. L. AHLERS, President, W. G. EAST, Cashier, S. S. EAST, Vlce-Pres, DR. L. B. STEEVES, U H. ROBERTS, Directors. Journal Want Ads Bring Results Cure Without Drugs No need to suffer from Nerrons ' Diseases when Mechnnlco-Thcrapen. tics will Cure or Benefit you. Mecbanlco-therapeutlcs Is a method of treatment of disease without drugs, by the use' of massage, manipulations, exercises, and so forth. Results are obtained because of the fact that only part of the body Is exercised suffi ciently to preserve the proper circula tion and innervation. The diseases which are benefitted or cured by this method of treatment are rheumatism, stiff joints or mus cles, neuralgias, headaches, back aches, constipation, paralysis. If you are In any douht as to the efficacy of this treatment, call at room 2 and 3, Bush-Breynian build ing, or Phone Main 1237, at any time, and any hour, and have a talk with PROF. S. Z. HARTLEY